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Hon. Larry 0. Cox Executive Director Board for Texas State Hospitals and Special Schools Austin, Texas OpinionNo, V-1454
Re: Legality of accepting day students at Austin State Schoolwho have not been committedby Dear Sir: a county co~urt.

Your request for an opinion reads in part as follows:

"Wedesire the opinion of yo'uroffice regarding the legality of accepting, educating,and instructingfeeble-minded day studentsat the Austin State School, without having them committedby a co.unty court. "TheBoard for Texas State Hospitals and Special Schools at a specialmeeting on February 25, 1952, approved a plan to educate such feeble-mindedday students, subject to a favorable opinion from your department. "Theday st,udents wo,uldcomewithin the definition of feeble-mindedchildren as defined In Article 3233 (V.C.S,),but they would not be committedand wouqd return to their homes each day after classes. They wo,uldattend the same classes as the committed cases. "TheBoard has some doubt as to Its legal power,

or authority to train s~uchstudents without commitment,and your opinion is necessary on account of the conflict;- ing views of the Board Members. D e a-.-

Hon. Larry 0. Cox, page 2 (V-1454)

The control and management of the A,ustin State School, a State institutionfor the care of feeble-mindedpersons, is vested in the Board for Texas State Hospitals and Special Schools. 317413,

Sets. 2 and 3, 3177, and 3234, V.C.S. Arts. Its operation Is financedby biennial appropriations out of the general revenue and local funds of the institution. H.B. 426, Acts 52nd Leg. R.S. 1951 ch. 499, Art. II, at p- 1257;'Art. 3236,V.C.S. bnder Section 5 of Article 3174b, the Board may promulgate such rules and regulations as It deems proper for the efficientadministrationof the institution,

Articles 3233 through 3238, V.C.S., have specific applicationto the admission and care ,of the feeble-minded in the Austin State School. For the purpose of those statutes, a feeble-mindedchild is defined in Article 3233 as follows:

"A feebleminded child

. . D is one of such feeblemental or moral powers as to be ,unable

to profit by the ordinary methods of educationas employed in the common schools." With respect to the admission of the feebleminded in that School,Articles 3235 and 3238 are applicable. They provide:

Article 3235 - "TheBoard shall provide accomodations for only such number of inmates from year to year as can be advantageo,usly cared for with the appropriation granted for that year, giving preference first to girls and women of child bearing age, and to those of both sexeswho are most likely to profit by the special education and training." Article 3238 - "In all cases in which the parent or guardian of a feebleminded person is financiallyable to pay the expenses of supportingand training such feebleminded person in the school, in whole or in part, he shall be required to do so. In all other cases there shallbe no fees or charges." Article 3236 then provides in part:. .. -

Hon. Larry 0. Cox, page 3 (V-1454)

"Allpersons committed or admltted to said institution shalTremaIn Fits oustody as permanentwards,of this State until released by the management thereof. The superintendentand Board may in their discretion e . Dat any time, parole any such person in the custody of parent or guardian for an indefinite period. D
. .' (Emphasisours.) Thus, in the laws pertainingto the Austin State School there is fo,und no provisionwhich.req,uires that a feeble-mindedchild, as therein defined, must be adjudged and committedby a court as such,before he may be admitted to that institution.

Articles 3867 through 3871, V,C.S., are the procedural laws providing for the adjudication and commitment of the feeble-mindedto the Austin State School by a proper co,unty court. Article 3871 reads as follows:

"If such.personbe found to be feebleminded, the court shall enter its order SO adjudginghim, and that he be committed to the c,ustody of the Austin State School. Upon the entry of such order, the court shall cause to be prepared a transcript of the proceedings and'evidence,which shall show the age, sex, race, status and mental condition of the patient,

. . .and transmit the same to the superintendentof such school. If the patient is entitled to be received into the school, and there Is sufficient room therein, the superintendent shall notify said judge thereof,whereupon the .judgeshall arrange to send such person to said school in likemanner in all respects as is provided for the sending of insane patients to an asylum."
It Is pertinent to note thatArticles x867-71,which have their origin in SenateBill 321, Acts 38th Leg.,R.S. 1923, ch. 82, ps 172, were enacted severalyears after the laws governing admissions into the Austin State School. H.B. 73, Acts 34th Leg., R.S. 1915, ch. 90, p0 143. Section 10 of Senate Bill 321, s'upra, specifically.^

. .. _

Hon. Larry 0. Cox, page 4 (V-1454)

provides that the adjudication-commitmentlaw "shall not suspend the right to have feebleminded persots admitted to such institutionunder existing laws. The statutesrespecting the Austin State School for feeble-mindedpersons and commitment of patients thereto should be liberally construed in order to accomplishbeneficent and humanitarian objectives thereof as nearly as possible. Schultzvi Brown 152 S.W.2d 801 (Tex.Clv. App. 1941,'errordi8m.j.

Accordingly, it is our opinion that the governingboard of the Austin State Schoolmay legally accept, educate and instruct feeble-minded,children, as defined in Article 3233 and authorized in Article 3235,without their having been committedby a county court, subject to the laws concerning their admission in that institution. SinceArticle 3236 permits the release of admitted persons Taothe custody of a parent or guardian for an Indefiniteperiod, such non-committed childrenmay, at the discretion of the Board, be permitted to return to theirhomes each day after special education:
SUMMARY

The Board for Texas State Hospitals and Special Schoolsmay legally accept, educate and instruct in the Austin State School feeble-mindedchildren,as defined in Article 3233,V.C.S., without their having been committedby a county court, subject to applicable laws concerning their admission. Art. 3235, V.C.S. At the Board's discretion, such admitted childrenmay be permitted to ret.urnto, their homes each day after classes. Art. 3236, V.C.S.
Yours very truly,
APPROVED:
E. Jacobson Reviewing Assistant Charles D. Mathews First Assistant CEO:mh PRICE DANIEL Attorney General

Bym 2x%=-&J Chester E. Ollison

Assistant